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Tuesday, 14 July 2015

Traditional knowledge (TK) is one of those subjects that
fits uncomfortably both within the scheme of conventional intellectual property
law and within the accelerated, technology-driven social revolution that has
seen social, cultural and commercial norms in almost all societies change
within the past three generations. Yesterday fellow Kat Nicola gave an
economist's view of TK, ending her post by asking whether
an economic analysis of the sort usually given to regular IP might not be quite
irrelevant. Now today, in this guest post, Katfriend Mira T. Sundara Rajan, an IP
enthusiast whose interests and activities span several cultures, writes about
the treatment of an indigenous minority culture in Canada. This is what
she has to say:

Airports,
wildfires, cultural survival … and intellectual property

All
airports are horrible, but every rule has an exception. In this case, the
exception is YVR, Vancouver’s spectacular international airport, cradled
between the mountains and the sea on Canada’s Pacific coast. But it is not only
Vancouver’s beautiful location that makes this airport extraordinary: it is the
fascinating display that is to be found within, featuring works of art and
recreations of natural ecosystems that reflect the land and cultures of the
west coast. Most, if not all, of that striking interior owes itself to Canada’s
Aboriginal peoples. Their cultures are ostensibly featured in this setting,
offering a distinctive welcome to a part of the world that is eager to demonstrate,
and celebrate, its uniqueness.

And yet, these beautiful façades are not quite what they seem. The truth behind
them is thought-provoking – and grim. While Canada is now eager to
showcase its Aboriginal heritage, the history of Canadian attitudes towards its
Aboriginal peoples is far from a happy one. On the contrary, Canada’s
treatment of its First Nations has been a disturbing butconsistent aberration
in a country that claims to pride itself on respect for human rights and
support for cultural diversity.

In June, an important moment in Canadian history arrived: the Truth and Reconciliation Commission, a body established in 2007 to investigate the decades-long mistreatment of Canada’s Aboriginal peoples in infamous “residential schools,” issueda detailed report. The Report was based largely on the testimony of victims, and features 94 recommendations for action. In its powerful statement, the Commission did not mince words: what had happened was “cultural genocide,” and nothing less.

The
announcement was met with mixed reactions – it was a much-needed,
open discussion of heartbreaking crimes, and represented a logical next step
after the federal
government’s official apology to Aboriginal Canadians for the
residential schools, in June 2008. However, it remains an open question whether
the government will move beyond the words of an apology, towards the concrete
adoption of the recommendations in the report. An astonishing 70
percent of Canadians appear to agreewith the terminologyadopted
by the Commission. If democratic mandate counts for something, this should
offer strong encouragement, indeed, for the government to press forward with
concrete action.

This
process of historical “reconciliation” will surely raise sobering reflections
for many, in Canada and around the world, about the long history of cultural
tension between Aboriginal peoples and the West. The atrocities dealt with in
the recent Canadian report are, thankfully, in the past. But it is worth
remembering that the transformation unleashed by what was, in effect, the
collision of two different world-views, is still unfolding. Aboriginal peoples
continue to search for a way of life that is at once resonant with their
cultural traditions, and modern. The process of change may be imbued with a
greater degree of sensitivity now than in the past, but it continues to be
immensely challenging.

The goal of
all those interested in Aboriginal cultures must be to prevent that
transformation from becoming, in new ways, traumatic. In this regard,
intellectual property lawyers should take a keen interest in what has been a
long-time niche interest for our community, but one that increasingly demands
our attention: the protection of Aboriginal traditional knowledge.

Not this sort of protection ...

What does
“protection” mean? When it comes to IP, the answer is easy enough: it means
protecting valuable intellectual property from unauthorized use by someone
other than its owner. IP should not be used without the necessary permission
and its usual correlate, payment. The justifications offered for this position
can be surprisingly complex, and even self-contradictory. But it can be crudely
explained by pointing out that IP protection aims to favour the
“exploitation” of IP by its “rightful” owner over all other forms of use. It is
assumed that this is ultimately beneficial to society. But neither this
definition nor these underlying rationales for the protection of IP can capture
what is meant by the protection of traditional knowledge.

Where
traditional knowledge is concerned, at least two fundamental issues emerge.
First, in contrast to IP, traditional knowledge is in need of protection from exploitation – particularly
when TK is exploited in a manner that is unfair, inappropriate, unauthorized,
or unjustified. As such, both people and culture may be directly affected by
the mistreatment. Moreover, as a general principle, decisions about the use of
traditional knowledge should remain in the hands of those who created it.
The “use” of traditional knowledge – a preferable term to exploitation – should
depend on the satisfaction of these basic criteria.

Secondly,
it is apparent that protection also means something beyond the prevention of
misappropriation. Traditional culture itself requires
protection – protection for ways of life and ways of thinking that,
in a world under threat, are subject to abandonment and “will not come again.”
Traditional cultures are in danger of disappearing, and require protection from
this eventuality. Attempts to resolve the conflicts between IP and traditional
knowledge can therefore make a significant contribution to this broader
struggle for cultural survival.

This
objective is one that should interest almost everyone. We live in an era of
unparalleled natural destruction, a time when the continuance of the human race
will largely depend on our ability to learn, or re-learn, how to co-exist with
our natural environment. Aboriginal cultures are known to excel at this kind of
knowledge. And it is no mere coincidence that, with the destruction of
biodiversity, cultural diversity, as well, faces growing dangers. Ironically,
at just the time when they are most needed, Aboriginal cultures are among those
most under threat.

Truly Tufty: the Canadian lynx

The root of
the conflict between modern and traditional cultures lies deep within the
colonial legacy of our past. Traditional cultures include both the cultures of
Aboriginal peoples and, more broadly, those of developing countries. Many of
these traditions represent human development “from time immemorial,” as the
expression goes, and they encompass vast resources of human ingenuity,
knowledge, and savoir-faire. Traditional knowledge is often
“encoded,” to use a “thoroughly modern” expression, into different types of
resources – epic poems, religious texts, marriage and family customs,
music, artistic designs, healing treatments, and so on. The knowledge behind the
practice can be so deeply buried that even the modern people within a given
culture may not be fully aware of the treasure in their possession. For
example, spices that are commonly used in Indian cuisine by even the poorest
members of society – turmeric, asafetida, neem – turn out to have potent
medicinal uses. Ancient religious texts extol the value of the “holy basil”
plant, but (and) it happens to have glorious medicinal properties.

Knowledge
of this kind is clearly alien to modern intellectual property systems. Systems
to preserve and propagate traditional knowledge do exist, but they generally
offer a striking contrast to modern intellectual property laws. Traditional
knowledge may be held communally, or by a certain community within a group. It is
often not conceptualised in terms of “property” or “ownership,” in the usual
sense; instead, it is understood as a kind of common good, dealt with in terms
more closely resembling the Western notions of trusteeship, stewardship, or
fiduciary responsibility, in preference to property. It may be sacred or
secret, protected by well-defined rules or rituals. As such, some traditional
knowledge represents a poor fit with the ethos of Commons movements in the West
– which are, nevertheless, broadly supportive of traditional knowledge to the
extent that they are against the commodification of knowledge through IP laws,
and on the terms described by those laws. Traditional knowledge may have a
single, identifiable creator, or it may not; and the relationship between
individual creator and community may be complex.

Aboriginal
peoples who live in developing countries face another layer of challenges – traditions
within traditions – where each stratum of society may be engaged in
its own struggle for cultural survival. The concept of time limits – which is,
itself, imbued with something akin to “sacredness” in the modern copyright
community – is largely devoid of significance for traditional knowledge.

This
situation creates continuing tension, which is quite rightly understood by many
involved in the discussions surrounding traditional knowledge as a
post-colonial legacy. The knowledge of Aboriginal peoples is now sought after
by drug companies engaged in bio-prospecting – which helps to point the way
towards the holy grail of the pharmaceutical industry, successful drug
development. The use of traditional knowledge from developing countries to
acquire patents became a focus of concern in the international community when
the U.S. Patent and Trademark Office granted patents in Indian traditional
knowledge, including those involving the use ofturmeric
and neem, to US claimants (in the turmeric case, the applicant
scientists were apparently expatriate Indians). Commercial entities are
attracted by the novelty and sophistication of Aboriginal art and design, and
often seek to appropriate these manifestations of traditional culture in
marketing their products. In all of these occurrences, it is unlikely that the
Aboriginal peoples who developed the knowledge or culture would derive any
benefit from its use. It is more likely that they would suffer damage, as the
exploitation of Aboriginal traditions for these purposes can represent a
radical departure from traditional values and cultural goals.

In
recognition of this situation, and after several decades of discussion, WIPO
has made a recent attempt to legislate on traditional knowledge at the
international level, developing
draft provisions for international treaties. The
diverse expressions of traditional knowledge defy homogeneous categorisation
and, to an extent, international harmonisation. Nevertheless, WIPO’s
efforts, and the perseverance of the WIPO Intergovernmental Committee on
Intellectual Property and Genetic Resources, Traditional Knowledge and
Folklore should be
strongly commended for one achievement that is both indisputable and
fundamental: they have brought awareness to the conflicts between IP and
traditional knowledge by establishing a forum for discussion in the
international community. That forum is sympathetic and ambitious; and it
is to be hoped that it will be increasingly receptive to Aboriginal viewpoints,
making a more
prominent place for Aboriginal voices in future legal discussions
of traditional knowledge.

The incompatibility between traditional knowledge and
intellectual property laws matters today as never before. And it is no longer
enough to want to protect traditional cultures from misappropriation: the
modern world desperately needs what these cultures have to offer. In contrast
to the knowledge for a price that is supported by the intellectual property
system, the traditional knowledge of Aboriginal cultures is rapidly becoming
knowledge beyond price. The struggle for cultural survival is no longer unique
to Aboriginal peoples; it is shared by us all. The painful recognition of a
history of “cultural genocide” in Canada is an important step forward on this
difficult but essential path.

This Kat agrees with Mira that Aboriginal cultures are of great value and have much to offer us if we should choose to listen to those who belong to them. He also feels that they should be respected and preserved for as long as those who live within them wish to continue doing so, with the proviso that no culture should be forced to remain with a straitjacket since all cultures, including Aboriginal ones, are themselves the product of a continuity of evolution in light of new knowledge, experience and narratives.

It has however long been the opinion of this Kat that, without in any sense denigrating the work of WIPO, it is not the appropriate agency for dealing with traditional knowledge and respect for the cultures which have developed and preserved it till now. As Mira says, "in contrast to IP, traditional knowledge is in need of protection from exploitation". This Kat feels that this is a task that might be better handled by the United Nations Educational, Scientific and Cultural Organization (UNESCO), a body that already deals with many sensitive cultural issues and the protection of the tangible dimension of human heritage. Would it make good sense, he wonders, to organise a "cultural exchange" between WIPO and UNESCO, in which WIPO hands over its involvement in traditional knowledge and indigenous culture to UNESCO, in return for UNESCO handing over its portfolio of IP-specific interests, including the somewhat out-of-place Universal Copyright Convention?

2 comments:

Anonymous
said...

Instead of trying to have the people benefit from the patents using their traditional knowledge it would be preferable to prevent such patents being granted at the first place, since they are not based on new inventions.

India has a project of creating a Traditional Knowledge Digital Library, which is organised according to IPC and is a good depository of prior art: http://www.tkdl.res.inI quote: "Documentation of this existing knowledge, available in public domain, on various traditional systems of medicine has become imperative to safeguard the sovereignty of this traditional knowledge and to protect it from being misappropriated in the form of patents on non-original innovations, and which has been a matter of national concern."

So either we need to simply apply the laws we have, or perhaps realize that some of what is being wanted to be prevented is the evolution of those things classified as "developed knowledge" which is counter to the notion of all of those things - whether "owned" by one culture in dominance, or not, are fair game for further innovation.

As to "appropriated art," you have a real issue of standing, as no one person in any culture "owns" the item and (again) the new expressions using pieces of what is in the commons is something for which copyright laws were meant to protect.

I see a "culture" battle being imported into IP. One should be critical of whether that battle really is an IP battle.

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